United States District Court, W.D. Pennsylvania
OPINION AND ORDER
MAURICE B. COHILL, Jr., Senior District Judge.
Pending before the Court is Petitioner Jason Scalise's Motion to Vacate, Set Aside, or Modify Sentence under 28 U.S.C. § 2255, filed at Criminal No. 07-52 Erie, with Brief in Support. ECF No. 86. The government has filed a Response to the Motion (ECF No. 89), to which Mr. Scalise has filed a Reply to Opposition (ECF No. 105). Mr. Scalise contends in his motion that he was denied effective assistance of counsel under the Sixth Amendment of the Constitution and denied his right to due process under the Fifth Amendment to the Constitution based on his trial counsel's failure to investigate and present mitigating evidence to government counsel in order to negotiate a favorable plea agreement, or to the Court at sentencing to obtain a greater variance or a departure, and thus a lower sentence.
Mr. Scalise also contends that he was denied effective assistance of counsel because his attorney operated under an actual conflict of interest while representing him. He alleges that the conflict of interest was due to his counsel's contemporaneous federal criminal investigation by the same office prosecuting Mr. Scalise, and that this conflict affected the adequacy of his representation. Mr. Scalise requests an evidentiary hearing to fully develop the record on these issues. ECF No. 109. Because we are unable to conclusively determine whether Mr. Scalise is entitled to relief based on the record, we will grant the motion for an evidentiary hearing.
A. Mr. Scalise's Criminal Case
On October 23, 2007, a Criminal Complaint was filed against Jason Scalise. ECF No. 1. Mr. Scalise retained Timothy J. Lucas, Esquire, as his counsel. ECF No. 15. On November 13, 2007, a federal grand jury returned an indictment against Mr. Scalise charging him with one count of receipt and attempted receipt of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. §2252(a)(2), and one count of possession and attempted possession of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. §2252(a)(4)(B). ECF No. 16.
On January 20, 2009, Mr. Scalise entered a plea of guilty to both counts of the indictment. ECF No. 45. A sentencing hearing was scheduled for May 11, 2009. ECF No. 45. The sentencing hearing was rescheduled to August 4, 2009 at the request of defense counsel. ECF No. 47. Prior to the hearing, a presentence report was prepared by the Probation Office, which calculated Mr. Scalise's advisory sentencing guidelines range at 210 to 240 months of imprisonment based upon an offense level of 37 and a criminal history category of I. PSR, ¶63. Neither side objected to this calculation of the guideline range.
At sentencing, Mr. Lucas spoke at length about a report prepared by a Clinical and Consulting Psychologist, Dr. Jerome Troncone, based on his examination of Mr. Scalise. Sentencing Tr. 9-11, 15-16, ECF No. 66. The thrust of defense counsel's argument to this Court was that Mr. Scalise did not meet the DSM4 criteria for being labeled a pedophile, and that the Court should consider this assertion in determining Mr. Scalise's future danger to society. Sentencing Tr. 10. Mr. Lucas also reminded this Court of the voluntary counseling Mr. Scalise had undergone before the time of sentencing. Sentencing Tr. 11.
Mr. Lucas also challenged several increases in the base offense level arguing, among other things, that the increases are not grounded in empirical data. Sentencing Tr. 12-14. First, he challenged the two-level increase for use of a computer, arguing that this has become so commonplace that the enhancement is unreasonable. Sentencing Tr. 13. He also argued against the application of increases for number of images of prepubescent individuals under the age of 12, and for images portraying sadomasochistic conduct. Sentencing Tr. 13-14. The thrust of this argument was Mr. Lucas's contention that these penalties were "a Sentencing Commission decision to simply reach out and increase these penalties for certain factors where there really is no basis to do that." Sentencing Tr. 14.
In conclusion, Mr. Lucas reminded this Court of the §3355 factors to be considered when imposing a sentence, and argued that, in light of such considerations and concerns, the guidelines seemed "so Draconian compared to the conduct of a Jason Scalise as to be unjustified and unwarranted." Sentencing Tr. 15. The focus of his argument was pointed to the second and third of the §3355 factors: "[T]o afford adequate deterrence to criminal conduct" and "to protect the public from further crimes of the defendant." See 18 U.S.C. §3553(a)(2)(B), 18 U.S.C. §3553(a)(2)(C). In arguing for strong consideration of these factors, Mr. Lucas again directed this Court to Dr. Troncone's report finding that Mr. Scalise was not a pedophile. Sentencing Tr. 16. Mr. Lucas concluded by asking the Court, in light of the advisory nature of the guidelines, to take into account the §3553(a) factors in exercising our discretion. Sentencing Tr. 17.
After Mr. Lucas addressed the Court, the Assistant United States Attorney prosecuting the case spoke. He questioned Dr. Troncone's assertion that Mr. Scalise was not sexually interested in children, calling the claim "laughable." Sentencing Tr. 26. The government otherwise did not address Dr. Troncone's report, and instead focused on the size and breadth of Mr. Scalise's collection of child pornography and the victims of the crime. Sentencing Tr. 26. The Assistant United States Attorney further argued that the guidelines were based in "human decency, " and therefore were not Draconian as Mr. Lucas suggested. ECF No. 66, Sentencing Transcript, at 27-28.
After hearing arguments, we imposed a sentence of 168 months at Count 1, and 120 months at Count 2 to be served concurrently for a total sentence of 168 months. Sentencing Tr. 31. This sentence was a 42-month variance from the guideline's suggested minimum sentence of 210 months. We explained after imposing sentence that we varied, in part, because enhancements for this offense concern features that are present "in many, if not most, cases [that] diverge significantly from the Sentencing Commission's typical empirical approach and produces a sentence greater than necessary." Sentencing Tr. 36 (quoting United States v. Hanson, 561 F.Supp.2d 1004 (E.D.Wis. 2008)).
Following his sentencing, Mr. Scalise appealed to the United States Court of Appeals for the Third Circuit, which affirmed his sentence. United States v. Scalise, 398 Fed.Appx. 736, 2010 WL 4230797 (3d Cir. Oct. 27, 2010). Mr. Scalise then filed a petition for a writ of certiorari with the United States Supreme Court. The Supreme Court ultimately denied the petition on February 28, 2011. Scalise v. United States, 131 S.Ct. 1585 (Feb. 28, 2011) (cert. denied). Mr. Scalise then filed the instant petition.
B. Mr. Lucas's Criminal Case
In order to resolve this Motion, it is also necessary to provide some background on Mr. Lucas. Mr. Lucas had maintained a practiced law in the Western District of Pennsylvania, which included a thriving criminal defense practice. This practice was abruptly interrupted in 1992, when Mr. Lucas pleaded guilty to an Information charging him with willful failure to file a timely tax return in violation of 26 U.S.C. § 7203. United States v. Lucas, Cr No. 92-19 Erie. On February 1, 1993, we sentenced Mr. Lucas to a term of imprisonment of 3 months, to be followed by one year of supervised release. Judgment, 2/1/1993, Ex. K, attached to ECF No. 85. Eventually, Mr. Lucas regained his law license and again established a thriving law practice, including representing criminal defendants in state and federal court.
Unfortunately, Mr. Lucas again began to evade his tax obligation beginning in 1997, culminating in an Information charging him with Tax Evasion from August 25, 1997, and continuing to the date of the Information. United States v. Lucas, Cr No. 10-45 Erie. In that case, the government indicated that Mr. Lucas knowingly and willfully evaded the payment of $329, 704 in tax due for the 11-year period set forth in the Information. Tr. of Change of Plea, 8/4/2010, at 14. Mr. Lucas pleaded guilty to the Information, and was eventually sentenced to imprisonment of 12 months and 1 day, to be followed by 2 years of supervised release. Judgment, 1/12/2011, ECF No. 28, at Cr No. 10-45 Erie. This sentence was a variance from the advisory guideline range of 21 to 27 months' imprisonment.
The investigation of Mr. Lucas's failure to meet his tax obligations began as early as 2004, and included a July 24, 2007 interview of Mr. Lucas by IRS agents, with numerous subsequent contacts between the IRS agents and Mr. Lucas or his representatives. On October 31, 2007, Mr. Lucas appeared on behalf of Mr. Scalise at his detention hearing. Thus, there is no question that Mr. Lucas was well aware before he began his representation of Mr. Scalise, that he was being investigated for his conduct and that it was highly likely that the investigation would result in criminal charges being filed against him
On September 9, 2009, the IRS agent investigating Mr. Lucas completed a Criminal Initiation Form referring the matter to the United States Attorney's office for the Western District of Pennsylvania. On September 14, 2009, Mr. Lucas was contacted by Assistant United States Attorney Jim Wilson, from the Pittsburgh Division of the Western District of Pennsylvania, who informed Mr. Lucas that the IRS investigation had been referred to his office for prosecution. Following this notification, Mr. Lucas withdrew from his representation of all his federal clients. ECF No. 89 at 28.
II. Standard of Review
Under section 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside, or correct the sentence upon the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Relief under this provision is "generally available only in exceptional circumstances' to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. Gordon, 979 F.Supp. 337, 339 (E.D. Pa. 1997), citing Hill v. United States, 368 U.S. 424, 428 (1962). The statute provides, as a remedy for a sentence ...